Judge wonders: Who was harmed by an alleged scheme by former probation department chiefs to shuttle jobs and promotions to politically connected but less qualified applicants?

Andy MetzgerState House News Service

BOSTON - With only about two weeks before the trial is scheduled to be presented for a jury, Judge William Young on Tuesday pondered who was harmed by an alleged scheme by former probation department chiefs to shuttle jobs and promotions to politically connected but less qualified applicants.

“Who are the victims of this scheme?” the judge asked federal prosecutor Fred Wyshak in a pre-trial hearing. Young was unconvinced by Wyshak’s argument that the general public was victimized, and said he agreed the victims were the most qualified applicants who were allegedly passed over for those sponsored by lawmakers and others in power.

Before being placed on leave in 2010, defendant John O’Brien led the department, which is responsible for keeping track of criminal offenders. Prosecutors allege that O’Brien and two deputies, Elizabeth Tavares and William Burke III, helped him surreptitiously send jobs to the politically connected, falsifying hiring documents to make them appear to be the most qualified.

“I see this case as primarily a fraud case,” said Young, who also questioned whether the alleged patronage constituted bribery, and asked to see the prosecution’s best cases supporting the claim that there was bribery.

In early April, Young granted a motion to sever the trial into two, putting off about half the counts for consideration in a second trial.

On Tuesday, Young instructed the Supreme Judicial Court, the state’s highest court, to turn over to the defendants monthly memos about hiring from right after O’Brien was first placed on leave, May 24, 2010. The SJC had resisted complying with a subpoena for all hiring records during that period, and Young stopped short of requiring the SJC to turn over all its hiring documents.

O’Brien’s attorney William Fick argued that the state court’s practice of hiring “provisional” employees without the written exam required by a 2011 reform law undercuts the prosecution’s case.

Stellio Sinnis, another attorney for O’Brien, said the practice of making provisional hires could be used to “impeach” the testimony of Robert Mulligan, the former chief justice of the Trial Court and Ellen Slaney, a former acting commissioner of probation.

“You can come up with a more refined subpoena,” Young offered the defense during the Tuesday afternoon hearing. He also questioned the relevance of actions that took place in the department after O’Brien had already left.

With several pieces of potential evidence still in dispute, Young tentatively carved out the morning of Thursday, May 1, to resolve those differences so they won’t jam up the proceedings of the jury trial.

O’Brien was previously acquitted of charges he faced in state court for allegedly conspiring to get his wife a job at the State Lottery in exchange for throwing a fundraiser for then-Treasurer Tim Cahill.

The upcoming federal trial features lawyers on both sides who have gained courtroom fame through their roles in high-profile cases over the years.

Wyshak won convictions against notorious mobster James “Whitey” Bulger last year. Fick is part of the defense team representing accused Boston Marathon bomber Dzhokhar Tsarnaev.

Jeffrey Denner and Brad Bailey, a former Republican nominee for attorney general, both defended Cahill on political conspiracy charges that resulted in a mistrial and are representing Tavares. Burke’s attorney, John Amabile, has defended several accused murderers over the years.

Also on the case for the prosecution are Karin Michelle Bell and Robert Fisher. Aside from Sinnis and Fick, O’Brien’s other listed attorney is Christine DeMaso. Burke’s defense team includes James Bradbury and Erica Jacobsen.